O'Jeda et al v. Viacom Inc. et al, No. 1:2013cv05658 - Document 41 (S.D.N.Y. 2014)

Court Description: MEMORANDUM OPINION AND ORDER re: 21 MOTION to Amend/Correct filed by Casey O'Jeda and 38 MOTION to Amend/Correct the Complaint filed by Casey O'Jeda: For the reasons set forth within, Plaintiffs' first motion for leave to am end the Case Management Plan and Scheduling Order to reflect a jury trial demand is DENIED substantially for the reasons set forth in Defendants' memorandum of law in opposition to the motion. (Docket No. 29). Plaintiffs' second motion for leave to amend the Complaint to add a new Plaintiff and class action claims under California law is GRANTED as unopposed and substantially for the reasons stated in Plaintiffs' memorandum of law. (Docket No. 39). Plaintiffs shall file their Amended Complaint within one week of this Memorandum Opinion and Order. (Signed by Judge Jesse M. Furman on 4/3/2014) (ab)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------------- X : CASEY O JEDA, et al., : : Plaintiffs, : : -v: : VIACOM, INC., et al., : : Defendants. : : ---------------------------------------------------------------------- X 4/3/2014 13 Civ. 5658 (JMF) MEMORANDUM OPINION AND ORDER JESSE M. FURMAN, United States District Judge: On August 13, 2013, Plaintiffs filed this action against Viacom Inc., MTV Networks Music Production Inc., and MTV Networks Enterprises, Inc. (together, Defendants ), seeking to recover unpaid minimum wages allegedly owed to them for work performed as interns under the Fair Labor Standards Act ( FLSA ), 29 U.S.C. § 201 et seq. and the New York State Labor Law ( NYLL ), § 650 et seq. On December 18, 2013, Plaintiffs filed a motion to amend the Case Management Plan and Scheduling Order, entered on December 4, 2013 (Docket No. 20), to indicate that the action would be tried by a jury. (Docket No. 21). And on March 19, 2014, Plaintiffs filed a motion to amend the Complaint to add an additional named Plaintiff and to add class action claims under California law. (Docket No. 38). Plaintiffs first motion for leave to amend the Case Management Plan and Scheduling Order to reflect a jury trial demand is DENIED substantially for the reasons set forth in Defendants memorandum of law in opposition to the motion. (Docket No. 29). Put simply, as Plaintiffs themselves implicitly concede in their memorandum of law (Docket No. 25, at 2), they failed to make a timely request for a jury, as they did not make a jury demand within fourteen days of the answer, see Fed. R. Civ. P. 38(b), and affirmatively stipulated in the Case Management Plan and Scheduling Order, which was so ordered by the Court, that the case would be tried without a jury. (Docket No. 20 ¶ 17). To be sure, Rule 39(b) of the Federal Rules of Civil Procedure provides that even though [i]ssues on which a jury trial is not properly demanded are to be tried by the court, the Court may, nevertheless, on motion, order a jury trial on any issue for which a jury might have been demanded. But the Second Circuit has repeatedly held that inadvertence in failing to make a timely jury demand does not warrant a favorable exercise of discretion under Rule 39(b). Westchester Day School v. Village of Mamaroneck, 504 F.3d 338, 356 (2d Cir. 2007) (quoting Noonan v. Cunard S.S. Co., 375 F.2d 69, 70 (2d Cir. 1967) (Friendly, J.)). 1 Here, as Plaintiffs sole excuse is inadvertent error (Docket No. 25, at 2), the Court cannot grant the relief sought. See, e.g., Raymond v. Int l Business Machines Corp., 148 F.3d 63, 66 (2d Cir. 1998) (stating that insofar as plaintiff offers no explanation beyond mere inadvertence for his failure to timely serve the jury demand, the district court erred . . . in granting plaintiff's Rule 39(b) motion ). Plaintiffs second motion for leave to amend the Complaint to add a new Plaintiff and class action claims under California law is GRANTED as unopposed and substantially for the reasons stated in Plaintiffs memorandum of law. (Docket No. 39). Plaintiffs shall file their Amended Complaint within one week of this Memorandum Opinion and Order. 1 In their memorandum of law, Plaintiffs rely on cases suggesting a more relaxed standard (Docket No. 25, at 2-3), but that standard is limited to cases that were removed from state court. See, e.g., New Generation Produce Corp. v. N.Y. Supermarket, Inc., No. 09 Civ. 5536 (ENV) (VMS), 2014 WL 1271156, at *2-3 (E.D.N.Y. Mar. 26, 2014) (comparing the standard applicable to cases originally filed in federal court and the somewhat relaxed standard applicable to cases removed from state court (internal quotation marks omitted)). 2 The Clerk of Court is directed to terminate Docket Nos. 21 and 38. SO ORDERED. Dated: April 3, 2014 New York, New York 3

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